SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3188-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

TARI D. TURPIN, 

 Defendant-Appellant. 

__________________________

Submitted April 23, 2024 – Decided September 11, 2024 

Before Judges Sumners and O'Connor. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 14-05-0885.

Jennifer Nicole Sellitti, Public Defender, attorney for 

the appellant (David J. Reich, Designated Counsel, on 

the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for 

the respondent (Meagan E. Free, Assistant Prosecutor, 

on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3188-21

 This matter returns to us after a remand to the post-conviction relief (PCR) 

judge to conduct an evidentiary hearing. The hearing was to address why trial 

counsel did not, as to shooting A.M.,1: (1) argue in summation that defendant 

Tari D. Turpin was not reckless; and (2) request a jury causation charge. 

Following the hearing, the judge denied defendant relief. For the reasons set 

forth below, we vacate defendant's conviction as to A.M. and remand for new 

trial. 

I 

 The parties are fully familiar with the facts and procedural history as set 

forth in our prior opinions on defendant's direct appeal and PCR petition, and 

therefore, only a brief summary is necessary to provide context to this opinion. 

State v. Turpin, No. A-1745-15 (App. Div. June 8, 2017), certif. denied, 231 

N.J. 539 (2017) (Turpin I); State v. Turpin, No. A-1236-18 (July 6, 2020) 

(Turpin II). 

On August 25, 2013, at about 4:30 a.m., defendant, with his two infant 

children and the children's mother, were riding a PATH train from New York to 

Jersey City when they got into an argument with a female passenger, D.D. 

1

 We use initials to identify the victims to protect their privacy. 
3 A-3188-21

Defendant pulled out a gun from his pocket, and then returned it to his pocket. 

After defendant pulled the gun out of his pocket again, D.D.'s friend, A.M, 

intervened. D.D. testified that before she and her brother could get off the train, 

A.M. "comes out of nowhere" and "swings at [] defendant." According to A.M., 

he put his left hand over defendant's pocket containing the gun, and his right 

hand on defendant's wrist to keep defendant from pulling out the gun. Defendant 

fired the gun, shooting off three fingers of A.M.'s left hand and shooting himself 

in the leg. When the train reached the Jersey City station, defendant exited, still 

holding the gun. He then paused, turned, and fired two shots at D.D., hitting her 

once in the leg and shattering her ankle. Defendant fled, discarding the gun, 

which was later recovered by the police. Defendant was arrested a few blocks 

from the train station. 

A jury found defendant guilty of two counts of second-degree aggravated 

assault––against D.D. and A.M., creating a risk of injury, and several weapons 

offenses. He was sentenced to an aggregate term of thirty years subject to the 

No Early Release Act, N.J.S.A. 2C:43-7.2, consisting of an extended prison term 

of twenty years for shooting D.D., with a consecutive ten-year term for shooting 

A.M. We affirmed defendant's conviction and sentence. Turpin I, slip op. at. 3. 
4 A-3188-21

 Defendant next sought PCR relief, raising numerous claims of ineffective 

assistance of counsel. The PCR judge dismissed the petition, and defendant 

appealed. We affirmed in part and reversed in part, remanding for an evidentiary 

hearing with respect to defendant's argument that trial counsel was ineffective 

in defending against the charge of aggravated assault upon A.M. Turpin II, slip 

op. at 4. 

We reasoned: 

Given A.M.'s conduct in placing himself into the 

quarrel between defendant, defendant's female 

companion, and D.D., by putting his hand inside 

defendant's pocket –– after defendant put the gun back 

in his pocket –– to take control of the gun, coupled with 

the State's argument that defendant was reckless for 

carrying a loaded gun onto a public train, the jury's 

consideration of A.M.'s conduct may have resulted in a 

different outcome on the conviction for aggravated 

assault of A.M. had counsel addressed defendant's 

reckless state of mind or lack thereof and requested a 

causation charge. Because we conclude there is no 

illuminating theory as to why counsel did not argue a 

defense to recklessness during summation and did not 

request a jury charge regarding causation, defendant 

has made a prima facie case of ineffective assistance of 

counsel. 

We therefore remand for an evidentiary hearing to 

determine whether trial counsel considered arguing 

defendant was not reckless and why a causation charge 

was not requested. If at the hearing, the PCR judge 

determines defendant satisfies his claim that counsel's 

performance fell below professional norms, the judge 
5 A-3188-21

should determine the probability of whether the jury's 

verdict on aggravated assault against A.M. might have 

been different. 

[Id. slip op. at 22.] 

In the ensuing evidentiary hearing,2 trial counsel testified that he 

considered whether to make an argument against recklessness. He stated: 

I made a deliberate decision not to address the 

recklessness. It was a strategic decision. I did that 

because quite frankly, the evidence that was presented 

at trial of recklessness was overwhelming from the 

issue of [defendant] bringing a loaded firearm onto a 

crowded PATH train to him pulling it out with respect 

to [D.D.] to him, again, attempting to pull the gun out 

with regard to [A.M.]. I made, again, a strategic 

decision not to argue that because I felt that evidence 

was so overwhelming that[,] if I looked the jury in the 

face and said that [defendant] was not reckless[,] I 

would lose all credibility with them. So[,] therefore, I 

focused on the fact that [defendant] did not knowingly 

or purposefully shoot [A.M.] 

As for a causation charge, trial counsel stated: 

I did . . . not ask for a causation charge because I felt 

the facts that were in the record did not warrant a

causation charge. And I say that because the testimony 

as I recollect with regard to the shooting of [A.M.] was 

2

 When a dispute arose regarding the PCR court's rulings limiting crossexamination of trial counsel, PCR counsel was granted a stay pending a motion 

to our court for leave to appeal. We denied leave to appeal, as did our Supreme 

Court. See generally State v. Turpin, 249 N.J. 450 (2022). 
6 A-3188-21

that the incident occurred that [defendant] had pulled 

out the gun and threatened [D.D.] with it. He then put 

the gun back, or holstered the gun . . . or put the gun 

back, concealed the weapon. [A.M.] saw that incident, 

became upset, some time lapsed, and [A.M.] then got

into [defendant's] face. [Defendant] tried to pull out the 

weapon, [A.M.] put his left hand, which was his 

dominant hand if I recall, on the outside of [defendant's] 

pocket and put his right hand on his wrist. Those facts 

. . . and then in the struggle the gun went off. And those 

facts, to me, didn't lead or didn’t create the factual 

record needed to say that [A.M.] was the superseding 

cause of the discharge. I say that because there was not 

testimony in the record that [A.M.] had his hand on the 

trigger, there was no testimony in the record that [A.M.] 

had his hand in his pocket, so I didn’t believe that the 

facts warranted. Also, that decision was reaffirmed by 

the fact that [defendant] chose not to testify. So based 

on the testimony of [A.M] and the failure of [defendant] 

to testify I did not ask for that charge because . . . I 

didn’t think the facts would lead to a superseding 

causation charge. 

Trial counsel acknowledged on cross-examination he had argued in his 

summation to the jury that A.M., not defendant, was the aggressor, and that A.M. 

started the fight, grabbed defendant's pocket, and the gun went off. There is no 

indication in the hearing record that counsel ever discussed this trial strategy 

with defendant or obtained his approval to offer no defense to recklessness. 

 The PCR judge issued an order and written decision denying relief. The 

judge accepted "[t]rial counsel's decision to not address recklessness in 

summation . . . [as] a strategically sound decision based on the facts presented 
7 A-3188-21

at trial." The judge also rejected the claim that trial counsel's failure to request 

a causation charge was ineffective assistance. 

 As for trial counsel's summation, the PCR judge reasoned: 

Here, there is no question that [defendant's] reckless 

conduct was the cause of A.M.'s serious bodily injury, 

thus satisfying the statutory requirements for reckless 

aggravated assault. [Defendant] submits, "[r]easonably 

competent counsel would have argued . . . that even if 

[defendant's] conduct was initially reckless . . . [,] 

A.M.'s injury was caused by his superseding event that 

took place when he approached [defendant], hit him and 

grabbed his pocket." Contrary to [defendant's] 

recounting of the events, however, the Appellate 

Division asseverated in their factual findings, 

"[defendant] began to pull the gun back out of his 

pocket, and . . . A.M. [] intervened."[3] The [Appellate] 

Division continued, "A.M.[] [then] . . . put his left hand 

over the pocket containing the gun[] and put his right 

hand on [defendant's] wrist in an effort to keep him 

from pulling out the gun. [Defendant] fired the gun, 

shooting off three fingers of A.M.'s left hand but also 

wounding himself in the leg." 

 . . . . 

Further, [defendant's] assertion that "A.M.'s injury was 

caused by his superseding event” is without merit. 

When [defendant] brandished a loaded handgun during

a verbal altercation with another on an occupied train 

car, the result risked and the actual result, regardless of 

A.M.'s actions, are one in the same – serious bodily 

injury to another. There was nothing extraordinary or 

3

 As noted later, defendant disputes that the record unequivocally establishes he

pulled out his gun a second time. 
8 A-3188-21

abnormal about A.M.'s effort to keep [defendant] from 

pulling out his weapon. Rather, attempting to protect 

yourself or others from the use of a deadly weapon, here 

a handgun, is "a normal and reasonably foreseeable 

result" of [defendant's] initial conduct. [See State v. 

Pelham, 176 N.J. 448, 465 (2003).] [(All alterations in 

original but "defendant('s)")].

Regarding the causation charge, the PCR judge determined: 

[Defendant] fails to overcome the strong presumption 

that trial counsel rendered adequate assistance because 

he has not shown that trial counsel's decision to forego 

requesting a causation charge was unreasonable or that 

he suffered prejudice as a result. Specifically, it was 

not unreasonable for trial counsel to forego requesting 

a causation charge because, after reviewing the facts of

this case, [defendant's] conduct was the but-for cause 

of the injury to A.M., and A.M.'s conduct was not an 

intervening cause. Accordingly, [defendant] fails to 

show that trial counsel's failure to request a causation 

charge constitutes ineffective assistance of counsel. 

Defendant appeals, arguing: 

POINT ONE 

THE PCR COURT SHOULD HAVE FOUND 

TURPIN'S DEFENSE COUNSEL WAS 

INEFFECTIVE IN FAILING TO ADAPT HIS 

SUMMATION TO A JURY INSTRUCTION HE 

KNEW WAS COMING AND IN FAILING TO 

REQUEST A SEPARATE JURY CHARGE 

CONCERNING CAUSATION WHICH WOULD 

HAVE HELPED THE JURY CONSIDER THE 

DEFENSE'S VERSION OF EVENTS. 

 

A. Introduction. 
9 A-3188-21

 

B. Ignoring A Forthcoming Jury Instruction Does Not 

Constitute The Reasonable Exercise Of Professional 

Judgment. 

C. Defense Counsel Was Not Compelled To Concede 

Recklessness. 

D. In View Of The Evidence Cited In His Own 

Summation, Defense Counsel Had No Valid Reason 

Not To Argue Causation Or Request A Causation 

Charge. 

E. Defense Counsel's Contention At The Evidentiary 

Hearing That A Causation Charge Was Unwarranted 

Was Based On A Factual Version Which Favored 

The State And Differed Dramatically From The 

Factual Version He Had Presented Previously 

During His Summation. 

F. The Version Of Events Cited By The PCR Court In 

A Portion Of Its Decision Differed From The Final 

Version Discussed In This Court's Decision 

Directing A Remand To The PCR Court. 

G. The PCR Court’s Suggestion That Turpin Was Not 

Entitled To A Jury Charge Concerning Causation 

Was Contrary To Settled Law; The PCR Court Erred 

In Concluding That The Holding In State v. Pelham 

Extends To This Case. 

H. Turpin Has Established That His Counsel's 

Assistance Was Ineffective. 

II
10 A-3188-21

When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, that he or she is entitled to the requested 

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 

459 (1992). To sustain that burden, the defendant must allege and articulate 

specific facts that "would provide the court with an adequate basis on which to 

rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). 

 To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obligated to show not only the way counsel's performance was 

deficient, but also that the deficiency prejudiced his right to a fair trial. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 

58-60 (1987). Under the first prong of this test, the defendant must demonstrate 

that "counsel made errors so serious that counsel was not functioning as the 

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 

U.S. at 687. Under the second prong, the defendant must show "that counsel's 

errors were so serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable." Ibid. That is, "there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different." Id. at 694. 
11 A-3188-21

"Mere dissatisfaction with a 'counsel's exercise of judgment' is insufficient 

to warrant overturning a conviction." State v. Nash, 212 N.J. 518, 542 (2013) 

(quoting State v. Echols, 199 N.J. 344, 358 (2009)). Rather, "a [petitioner] must 

establish that trial counsel's actions did not equate to 'sound trial strategy.'" 

State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 

689). 

 Where, as here, the PCR judge conducts an evidentiary hearing, we must 

uphold the judge's factual findings, "'so long as those findings are supported by 

sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 

440 (2013) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (citation and 

internal quotation marks omitted)). Additionally, we defer to a trial judge's 

findings that are "'substantially influenced by [the judge's] opportunity to hear 

and see the witnesses and to have the "feel" of the case, which a reviewing court 

cannot enjoy.'" Ibid. (quoting Elders, 192 N.J. at 244). However, a "PCR 

[judge's] interpretation of the law" is afforded no deference and is "reviewed de 

novo." Nash, 212 N.J. at 540-41 (citing State v. Harris, 181 N.J. 391, 415-16 

(2004), certif. denied, 545 U.S. 1145 (2005)). 

Applying these standards, we are constrained to reverse and remand for a 

new trial regarding defendant's conviction for aggravated assault of A.M. We 
12 A-3188-21

ordered an evidentiary hearing be held because "the jury's consideration of 

A.M.'s conduct may have resulted in a different outcome on the conviction for 

aggravated assault of A.M. had counsel addressed defendant's reckless state of 

mind or lack thereof and requested a causation charge." Turpin II, slip op. at 

22. We disagree with the PCR judge's determination that trial counsel's strategic 

decision to forgo arguing defendant was not reckless and not to request a jury 

causation charge was reasonable. We conclude that, had trial counsel's strategy 

not been employed, there was a reasonable probability the jury could have found 

defendant not guilty of aggravated assault against A.M. 

At trial, there were two different versions of the incident. The State 

contended defendant pulled the gun out of his pocket a second time before A.M. 

grabbed his hand causing a struggle resulting in A.M. being shot in the hand. 

Trial counsel summed up arguing that before A.M. was shot in the hand, A.M. 

injected himself into the dispute D.D. had with defendant and defendant's 

mother's children, tried to hit defendant, and attempted to take control of the gun 

in defendant's pocket. Whether defendant's recklessness caused A.M. to be shot 

was the prime issue for the jury to determine whether defendant was guilty of 

second-degree aggravated assault. 
13 A-3188-21

To find a person guilty of second-degree aggravated assault, the jury must 

determine "if the person . . . [a]ttempts to cause serious bodily injury to another, 

or causes injury purposely or knowingly or under circumstances manifesting 

extreme indifference to the value of human life recklessly causes such injury[.]" 

N.J.S.A. 2C:12-1(b)(1) (emphasis added). Each mental state individually 

satisfies the statute for second-degree culpability. 

 Where a jury must determine if a defendant acted recklessly, "the State 

must prove at least one of two forms of causation: (1) 'the actual result must be 

within the risk of which the actor is aware'; or (2) 'if not, the actual result must 

involve the same kind of injury or harm as the probable result.'" State v. 

Parkhill, 461 N.J. Super. 494, 501 (App. Div. 2019) (citing N.J.S.A. 2C:2-3(c)); 

see also State v. Buckley, 216 N.J. 249, 263 (2013). 

We agree with defendant's arguments regarding the proofs the State was 

required to show recklessness. He contends, citing Buckley, 216 N.J. at 264, 

that under the first prong, "the State was required to prove to the jury beyond a 

reasonable doubt in this case that [defendant] was aware that showing his gun 

had created a risk of serious injury." And citing State v. Eldridge, 388 N.J. 

Super. 485, 500 (App. Div. 2006), he contends that under the second prong the

State had to prove "that A.M.'s injury was not 'too accidental in its occurrence 
14 A-3188-21

or too dependent on [A.M.'s] volitional act to have a just bearing on 

[defendant's] liability.'" 

Although the indictment charged only purposeful or knowing aggravated 

assault upon A.M., the trial court denied defendant's Reyes4 motion to dismiss 

the aggravated assault charge for lack of proof of intent and also granted the 

State’s request for a charge of recklessness. Aware that recklessness was now 

an alternative state of mind for the jury’s consideration, defense counsel neither 

argued defendant's lack of recklessness in summation nor requested a causation 

charge. Significantly, there was no testimony that defendant agreed with this 

strategy as trial counsel clearly stated on the record that he made the strategic 

decision not to argue recklessness on summation or to request a causation 

charge. 

We disagree with the PCR judge that this was sound strategy. If the jury 

declined to find defendant acted purposefully or knowingly, defendant faced the 

same second-degree culpability if the jury nevertheless found his conduct 

reckless. Trial counsel's strategy that he did not want to lose credibility with the 

jury by arguing defendant was not reckless in shooting A.M. was unreasonable. 

As defendant argues before us, considering he "perceived [a] threat of a drunken 

4

 State v. Reyes, 50 N.J. 454 (1967). 
15 A-3188-21

crowd screaming at him and pushing him against the wall of the train while his 

two young children and their mother sat nearby[,]" trial counsel could have 

reasonably argued to the jury that he was not reckless. Trial counsel could have 

"characterized [defendant's] action [of showing the gun] as a spontaneous 

defensive gesture, as distinguished from a reckless action taken in conscious 

disregard of a known risk" and "emphasized that [defendant] had put the gun 

back in his pocket before A.M. assaulted [defendant], grabbed the pocket where 

the gun was located, and the gun went off." Furthermore, trial counsel could 

have asserted defendant was not reckless because he could not have expected 

A.M.'s aggressiveness in reigniting a dispute that had de-escalated. 

We fully appreciate defendant's conduct in displaying a loaded gun on a 

crowded train during a heated dispute with drunken passengers is dangerous. 

Yet, the fact remains that the only reasonable defense was for trial counsel to 

stress that defendant did so to de-escalate the situation, not to shoot anyone, and 

A.M. escalated the situation, which led to him being shot. As we stressed in our 

remand decision, not arguing against recklessness effectively amounted to no 

defense by tacitly admitting to reckless aggravated assault. Trial counsel's 

strategic explanation is unavailing and particularly concerning as the record 

presents no evidence that counsel discussed this approach with defendant. At 
16 A-3188-21

minimum, before unilaterally adopting a trial strategy not to refute the State’s 

equally serious alternative allegation that defendant acted recklessly, counsel 

should have consulted defendant, whose sole province it is to decide when and 

whether to assert his innocence. See McCoy v. Louisiana, 584 U.S. 414, 422 

(2018) (recognizing counsel may not strategically concede guilt when a client's 

trial objective is to profess innocence). 

Turning to trial counsel's decision not to request a causation charge, this 

was also ineffective assistance. Our high Court held, "[w]hen . . . divergent 

factual versions give rise to different theories of causation, the trial court should 

provide the jury with appropriate instructions, depending on which version it 

chooses to accept." State v. Martin, 119 N.J. 2, 16-17 (1990). In Parkhill, we 

held the trial court erred in not giving a causation charge. 461 N.J. Super. at 

499. We ordered a new trial, "[b]ased on the victim's actions and defendant's 

contention that the victim caused the accident, the court should have delivered 

the model jury charge on causation, consistent with N.J.S.A. 2C:2-3(c)." Id. at 

497. Thus, where causation is at issue and a separate causation charge is not 

given, there is a "clear capacity to produce an unjust result." Martin, 119 N.J. 

at 34; see also Parkhill, 461 N.J. Super. at 499; Eldridge, 388 N.J. Super. at 500. 
17 A-3188-21

The causation charge under N.J.S.A.2C:2-3 regarding reckless conduct 

provides: 

Causation has a special meaning under the law. To 

establish causation, the State must prove two elements, 

each beyond a reasonable doubt: 

First, but for the defendant's conduct, the result in 

question would not have happened. In other words, 

without defendant's actions the result would not have 

occurred. 

 

. . . . 

Second, [for reckless conduct] that the actual result 

must have been within the risk of which the defendant 

was aware. If not, it must involve the same kind of 

injury or harm as the probable result and must also not 

be too remote, too accidental in its occurrence or too 

dependent on another's volitional act to have a just 

bearing on the defendant's liability or on the gravity of 

his/her offense. [alteration in original] 

[Model Jury Charges (Criminal), "Causation (N.J.S.A. 

2C:2-3)" (approved June 10, 2013).] 

The facts here supported a causation charge because the State had to prove 

defendant was responsible for causing A.M. to be shot. Defendant was not 

required to prove that A.M. pulled the trigger or even how A.M. was shot. The 

State was required to prove beyond a reasonable doubt that defendant caused 

A.M.'s injury. Because there were two different versions of the shooting, 
18 A-3188-21

including one indicating that A.M. was the instigator, a causation charge was 

warranted. 

In conclusion, we express no view on the outcome at a new trial. Vacating 

defendant's conviction and sentence for second-degree aggravated assault as to 

A.M. is not a suggestion that the jury could not have convicted defendant of the 

offense. Rather, we conclude there was a reasonable probability based on the 

facts presented that trial counsel was ineffective for failing to argue defendant 

was not reckless in shooting A.M., given it was an independent alternative basis 

for the offense, and for failing to request a causation jury charge given A.M.'s 

conduct. 

Reversed as to the second-degree aggravated assault of A.M. and 

remanded for retrial. We do not retain jurisdiction.